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Slope Still Slippery

Dennis Henigan’s theory that Heller paves the way for new gun controls, by eliminating fears of the slippery slope, might be possible in the long run, but is probably not correct in the short run.

First of all, Heller was a 5-4 decision. Even if a Supreme Court a few years from now did not formally over-rule Heller, the Court could constrict Heller so tightly that it could become the last case which even meaningfully applied the Second Amendment. A future Court could also greatly reduce Heller’s scope by refusing to make it enforceable against state and local governments. There is every reason to believe that an Obama Court, at the urging of an Obama DOJ, would do so. In 1996 Obama endorsed handgun prohibition; in 2007, his campaign said that Obama supported the D.C. handgun ban. Obama has proposed outlawing all self-loading guns, banning all gun stores within five miles of a school or park (i.e., almost everywhere except roadless wilderness), and national legislation to override the handgun licensing laws of the 48 states which allow citizens to carry concealed handguns for lawful protection. Post-Heller, he claims to be against the D.C. handgun ban, and says he has always supported the Second Amendment individual right. Assuming that his claim about the Second Amendment is sincere, his version of the Second Amendment does not stand in the way of banning most guns.

Second, nothing in Heller stops the United Nations’ current global campaign against firearms ownership. The international gun prohibition lobby IANSA (International Action Network on Small Arms) is the “the organization officially designated by the UN Department of Disarmament Affairs (DDA) to coordinate civil society involvement to the UN small arms process.” The UN’s official representative of civil society favors handgun prohibition, prohibition of any rifle that can shoot 100 meters (e.g., almost all of them), prohibiting gun ownership for self-defense, and drastic reductions in levels of gun ownership. IANSA and the UN are currently working on an Arms Trade Treaty to eliminate gun sales to countries which violate human rights — which by the UN and IANSA definition means the United States; the UN and IANSA have already declared that laws like those in the U.S., which allow a woman to shoot a rapist, are a violation of the human rights of the rapist. The Brady Campaign, incidentally, is a member organization of IANSA.

We know that there are often four Justices — and sometimes five — who will use unratified treaties (like CEDAW, the Convention on the Elimination of all forms of Discrimination Against Women), or treaties which are not even applicable to the United States (like the African Convention on the Rights of the Child), as guidance in interpreting the U.S. Constitution. After two terms of President Obama, there could be several more such Justices.

As Henigan points out, Douglas Kmiec, who would likely be one of President Obama’s top Supreme Court advisors, has bitterly criticized Justice Scalia’s opinion in Heller. Kmiec chastises the Catholic Scalia for disregarding a 1978 statement [see p. 26 of the linked article] by the United States Conference of Catholic Bishops in favor of a handgun ban.

Did the June decision in Heller reduce the immediate risk of the slippery slope? Yes. Will that protection survive an Obama presidency in which the U.S. delegation at the United Nations (as in the Clinton years) enthusiastically supports the global prohibition campaign, and in which a President Obama, advised by Douglas Kmiec, appoints Justices who believe in the Obama/Kmiec vision of the Second Amendment — and in using international “norms” to constrict American rights? Constitutional rights advocates who think that the slippery slope problem has been resolved once and for all would be naïve.

Also from This Issue

Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.

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